EXHIBIT 10.4
ASSIGNMENT, ASSUMPTION AND INDEMNIFICATION AGREEMENT
This Assignment, Assumption and Indemnification Agreement ("Agreement")
is entered into by and among HyComp, Inc., a corporation organized under the
laws of the Commonwealth of Massachusetts ("Assignor"), Microtel International,
Inc., a corporation organized under the laws of the State of Delaware
("Assignee"), XIT Corporation (formerly known as XCEL Corporation), a
corporation organized under the laws of the State of New Jersey and a
wholly-owned subsidiary of Assignee (the "XIT").
WHEREAS, certain equipment and other assets of Assignor were purchased
pursuant to that certain Asset Purchase Agreement by and between Assignor and
HyComp Acquisition Corp., a Delaware corporation ("Acquisition Corp."), dated
March 31, 1999 (the "Satcon Agreement"), which provided, among other things,
that Acquisition Corp. pay Assignor a royalty (the "Royalty") of 5% of all sales
made to customers of Assignor who were not also customers as of the Closing Date
(as therein defined) of Acquisition Corp. for a period of 52 weeks following
such Closing Date;
WHEREAS, all of the issued and outstanding shares of common stock and
other securities of Assignor owned by XIT are to be sold to a group of buyers
represented by ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ pursuant to that certain Stock Purchase
Agreement (the "Stock Purchase Agreement") entered into as of October 13, 1999,
by and among Microtel, XIT, each of the persons listed in Schedule I thereto and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇;
WHEREAS, Assignee wishes to acquire the Royalty from Assignor in
exchange for Assignee's agreement to assume certain liabilities of Assignor; and
WHEREAS, in order to induce the Buyers (as defined in the Stock
Purchase Agreement) to enter into the Stock Purchase Agreement, Assignee has
agreed to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and on the basis of
the respective representations, warranties, covenants, agreements, undertakings
and obligations set forth herein, and intending to be legally bound hereby, the
parties agree as follows:
1. Assignment. Assignor hereby assigns and transfers to Assignee,
without recourse of any kind, all right, title and interest to and in the
Royalty.
2. Assumption. Assignee and XIT, jointly and severally, hereby
undertake, assume and agree to pay, perform and discharge when due those
liabilities and obligations set forth on the Assumed Liabilities and Obligations
schedule attached hereto as Schedule A (the "Assumed Obligations").
3. Indemnification. Assignee and XIT, jointly and severally, hereby
agree promptly upon demand to indemnify and hold harmless Assignor and its
affiliates and their respective officers, director, employees and agents against
all claims, damages, losses, liabilities, costs and expenses (including, without
limitation, settlement costs and any legal, accounting or other
expenses for investigating or defending any actions or threatened actions)
reasonably incurred by such persons in connection with or arising out of each
and all of the Assumed Obligations.
4. Further Assurances. On and after the Closing Date, each party shall,
from time to time at the other party's reasonable request and cost, execute such
further documentation as is necessary and appropriate to effectuate the
assignment, transfer and assumption of the Assumed Obligations.
5. Counterparts. Facsimile transmission of any signed original document
and/or retransmission of any signed facsimile transmission will be deemed the
same as delivery of an original. At the request of any party, the parties will
confirm facsimile transmission by signing a duplicate original document. This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which shall constitute but one and the same instrument.
6. Governing Law. This instrument shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York, without
regard to its choice-of-law principles.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption Agreement to be executed as of the 13th day of October, 1999.
ASSIGNOR
HYCOMP, INC.
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman, President and
Chief Executive Officer
ASSIGNEE:
MICROTEL INTERNATIONAL, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and
Chief Executive Officer
XIT CORPORATION
(formerly known as XCEL CORPORATION)
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and
Chief Executive Officer
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SCHEDULE A
ASSUMED LIABILITIES AND OBLIGATIONS
(i) Unpaid debts, liabilities or obligations of HyComp incurred prior to
the Closing of the Stock Purchase Agreement, including, without
limitation, liabilities or obligations resulting or arising from
either: (i) claims for personal injury, property damage, employment
matters, intercompany accounts payable and notes payable to lenders; or
(ii) non-performance of any contract, commitment or obligation imposed
by law or otherwise;
(ii) Any claim by any person or other liabilities or obligations relating
to: (A) the Satcon Agreement or the authorization or consummation
thereof; (B) the breach of any representation, warranty, covenant,
agreement or obligation of Assignee, XIT or Assignor relating to the
Satcon Agreement or any documents in connection therewith; or (C) the
distribution of the proceeds of the sale of assets following the
consummation of the Satcon Agreement;
(iii) Any claims by any person or other liabilities or obligations relating
to any preferred stock of Assignor issued and outstanding prior to the
Closing of the Stock Purchase Agreement, the redemption or conversion
thereof or dividends accrued in respect thereof prior to such Closing;
(iv) All taxes that may be imposed upon or assessed against Assignor or the
assets thereof with respect to all taxable periods ending on or prior
to the Closing of the Stock Purchase Agreement and any losses, damages,
liabilities, obligations, deficiencies, costs and expenses incurred in
connection therewith; and
(v) Any claim by any person for brokerage or finder's fees or commissions
or similar payments based upon any agreement or understanding alleged
to have been made by any such person with Assignee or XIT in connection
with the transactions contemplated by the Stock Purchase Agreement;
(vi) Any warranty claim or product liability claim relating to products
manufactured or sold by HyComp prior to the Closing of the Stock
Purchase Agreement; and
(vii) All other libilities arising out of the operation of the business of
Assignor prior to the Closing of the Stock Purchase Agreement.
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